Implications of the Ian Paterson case for the private hospital sector

This article was first published in the Bulletin of the Royal College of Surgeons

The conviction of Ian Paterson has put the issue of patient safety in private hospitals back on the agenda. The efficacy of a regulatory regime that allowed a surgeon to continue operating on patients in private hospitals despite there being known concerns about his professional competence and conduct has once again been brought into question, prompting the Secretary of State to propose that a public inquiry should be held by the next government. What should such an inquiry focus on?

Accountability

The starting point should be the need for private hospitals to be held accountable for the care that takes place in them, and the mechanisms they have in place for ensuring that patient safety is prioritised. There are no doubt issues about the failings of the NHS in relation to Paterson’s patients; but although significant measures have been put in place to improve patient safety in NHS hospitals following the events at Mid Staffs and Morecambe Bay, successive governments have left the private hospital sector’s model of operation and system of clinical governance essentially untouched for more than half a century.

Unlike NHS hospitals, which are liable for the actions of their surgeons and physicians, private hospitals do not employ the consultants who work in them. The contract for undertaking an operation is between the patient and the surgeon, with a separate contract between the patient and the hospital for the use of the hospital’s facilities and services. So whereas the NHS Litigation Authority – which covers the liabilities of NHS hospitals – is paying out significant sums to compensate Paterson’s victims, the private hospitals involved have in most cases refused to do so and Paterson’s victims are being forced to take legal action to seek redress from him personally. If private hospitals are not legally liable when things go wrong in clinical settings they will always lack the most important incentive to prevent this happening.

Leading on from this, any inquiry should also examine the role played in private hospitals by Medical Advisory Committees (MACs), which advise hospital managements on the granting of privileges to consultants to practise there. The independent inquiry into the way the Paterson case was handled by the private hospitals found significant shortcomings in the oversight role played by the MACs. ((Verita. Independent review of the governance arrangements at Spire Parkway and Little Aston hospitals in light of concerns raised about the surgical practice of Mr Ian Paterson. http://www.verita.net/wp-content/uploads/2016/04/Independent-review-of-the-governance-arrangements-at-Spire-Parkway-and-Little-Aston-hospitals-Spire-Healthcare-March-2014.pdf [last accessed 31 May 2017].)) The MACs at both hospitals failed to notice his malpractice, unlike in the NHS where it was detected and – belatedly – stopped. Patients’ complaints were dismissed on the basis of Paterson’s assurances, and he was even allowed to continue to practise in the private hospitals for three weeks after he had been excluded by his NHS trust.

Conflicts of Interest and Perverse Incentives

The key problem here is that MACs have a built-in conflict of interest and no legal duties. They are supposed to represent the interests of patients but, as they are composed of and elected by the clinicians who have practising privileges at the hospital, there is no clear incentive for them to put patient safety first and to highlight areas of poor practice or possible malpractice among their colleagues. MACs have no statutory role, and although private hospital managers are supposed to accept their advice on clinical issues they are not legally required to do so.

In addition, because hospitals rely on the consultants to bring in business they too have a conflict of interest when it comes to prioritising patient safety concerns. As the independent investigation mentioned above noted, for the hospital ‘patients are the ultimate customer, [however] consultants are promoted corporately as [the] primary customer’. In other words, they rely on consultants to bring in patients, and because they are not legally liable for the work the consultants do, there is an inherent disincentive to audit and monitor their work. There is also the practical difficulty faced by small private hospitals of monitoring the work and competence of (in some cases) hundreds of consultants with practising privileges, as a 2014 report by the Centre for Health and the Public Interest showed. ((Centre for Health and the Public Interest. Patient safety in private hospitals: the known and the unknown risks. https://chpi.org.uk/wp-content/uploads/2014/08/CHPI-PatientSafety-Aug2014.pdf [last accessed 31 May 2017].)) A future government inquiry should examine these conflicts of interest and the overall efficacy of the clinical governance arrangements in private hospitals.

Transparency

The Royal College of Surgeons has called for a review to improve safety standards and data transparency in the private sector, and for private hospitals to be required to report safety incidents and unexpected deaths on the same basis as the NHS, and to take part in clinical audits as a condition of registration by the Care Quality Commission. We should strongly endorse this call. Systematic reporting of safety incidents and unexpected deaths to the National Reporting and Learning System, and participation in clinical audits, are key means whereby patterns of unsafe practice are identified by independent experts and acted on. There is no good reason for exempting private hospitals from these requirements.

Some may consider that the recent attempt by the private hospital sector to improve transparency has addressed this concern. But the purpose of the data transparency called for by the RCS is quite different from the publication of performance data that the Competition and Markets Authority (CMA) has ordered from providers of private treatment.

That information is intended to help private patients to compare different providers and, although it includes some data relevant to patient safety, it notably fails to include some information that is critical for safety – such as, for instance, whether a hospital has a rota of on-call anaesthetists, or on-site specialist physicians, or level-3 intensive care beds.

Moreover, the provision of data about hospital performance should meet the test set down by Sir Robert Francis in his report into Mid Staffs – namely, that if it is to be trusted it should be published by organisations that are ‘unimpeachably independent’. ((The Mid Staffordshire NHS Foundation Trust Inquiry. Independent Inquiry into care provided by Mid Staffordshire NHS Foundation Trust January 2005 n– March 2009 Volume I Chaired by Robert Francis QC, para 59. http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_113447.pdf [last accessed 31 May 2017].)) But the Private Hospitals Information Network (PHIN), which is charged with publishing the data ordered by the CMA, is not independent from the private hospital sector. On the contrary, it is funded by the sector and represents it heavily in its governance structure, as the CMA intended. The quality of the data published by PHIN thus does not meet the standard set for the NHS.

No system is fool-proof or knave-proof, as the scandal at the Morecambe Bay maternity unit also tragically showed. But the history of tragedies in the private sector reveals a flawed system for ensuring that patient safety issues are prioritised, that action is taken when problems are spotted, and that lessons are learned. Any forthcoming inquiry should recognise that unless private hospitals are required to take full liability for the actions of the consultants who practise in them, any system of clinical governance they adopt will always be found wanting.